Levey says he is “fairly confident” that Kennedy will vote with the other con- servatives to stop what they see as a dangerous expansion of the adminis- trative state. If Levey’s right, that would once
again put Obamacare’s fate in the hands of Justice Roberts. The Chief Justice would essentially receive a do- over. And a second pro-Obamacare ruling by Roberts would alter his judi- cial legacy forever. “Roberts would never again be viewed as a conserva- tive,” Levey flatly states. In a sense, a literal reading of the
ACA’s text would be consistent with Roberts’ earlier ruling in favor of Obamacare. Both rulings would osten- sibly defend the provisions of the law passed by Congress. “Here again, he’s just deferring to
Congress,” says Levey. “It’s not clear what Congress meant, but they’re
doing nothing beyond trying to find out what Congress meant. So I think he can reconcile the two in his mind as consistent.” That states would then remain
free to establish an exchange if they wished to do so would shield Ken- nedy and Roberts from the inevitable charge of judicial activism. They could legitimately say they were just leaving the question up to the states, as speci- fied in the original legislation. If the Supreme Court knocks subsi-
dies out of the federal exchanges, the scrambling will begin. Insurance com- panies, congressional Republicans, hospitals, the Obama administration, and the 2016 presidential contend- ers for both parties will all rush to respond. The finger pointing is sure to begin over who is to blame, and the future of U.S. healthcare will be thrust into a state of suspense.
2016 Race Repercussions
P
olicy wonks on both sides of the aisle are already debating the
repercussions if the Supreme Court tosses out the Affordable Care Act’s tax-credit subsidies in 36 states. The Supreme Court might try to
soften the blow by allowing a grace period during which states could weigh whether to reverse themselves and establish state-based exchanges. But doing so could prove intensely unpopular with the GOP base. One Rand Corporation study
estimated a staggering 9.6 million citizens would drop out of the insurance market. Losing so many customers would force insurers to enact massive premium hikes, analysts say. In the individual market, Rand
Which Way Will They Go?
Chief Justice John G. Roberts, 60 Joined Court: 2005 Appointed by: George W. Bush Insider Analysis: During his confirmation hearings Roberts remarked, “It’s my job to call balls and strikes, not to pitch or bat.” In nixing the subsidies in 36 states, Roberts could reasonably assert he is only following the actual wording of the law that Congress passed. This case could fully restore his standing with conservatives.
Justice Anthony M. Kennedy, 78 Joined Court: 1988 Appointed by: Ronald Reagan Insider Analysis: Kennedy reportedly was quite upset with Roberts over his 2012 wobble on Obamacare. Something of a civil libertarian on individual-rights issues, Kennedy tends to be a reliable conservative on government-overreach cases. The federalism aspect of allowing states to decide for themselves if they want to set up exchanges will probably appeal to him.
estimates those premium increases would approach 50 percent: The dread prospect of a “death spiral” in health insurance markets would have to be taken seriously. Some analysts believe that the
pressure on Congress and President Obama to work out a compromise will be so intense that both sides would be motivated to reach a “grand bargain” on healthcare. Currently, however, there appears
to be little consensus among Republicans regarding what the new healthcare regime should be. Looming over the discussion
would be one very important date: November 2016. The closer the presidential election, the harder it will be for politicians in either party to cut a deal.
A GOP leader perceived as
reviving Obamacare just when it appeared to be on the ropes could probably kiss their hopes of winning the nomination goodbye. If a political stalemate ensues,
2016 could become a referendum on the U.S. healthcare system. — D.P.
MARCH 2015 | NEWSMAX 11
JUSTICES/STEVE PETTEWAY/COLLECTION OF THE SUPREME COURT OF THE UNITED STATES
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